Sunshine Farm, LLC v. Glaser

No. 162               March 6, 2024                   429

          IN THE COURT OF APPEALS OF THE
                  STATE OF OREGON

               SUNSHINE FARM, LLC,
                   Plaintiff-Appellant,
                             v.
                   Dennis GLASER,
                     an individual,
                   and Trever Glaser,
                     an individual,
                Defendants-Respondents,
                           and
              MID-VALLEY FARMS, INC.,
                 an Oregon corporation,
                       Defendant.
               Linn County Circuit Court
                  20CV43602; A176854

  Thomas McHill, Judge.
  Argued and submitted January 30, 2023.
   Andrew DeWeese argued the cause for appellant. Also on
the briefs was Kevin J. Jacoby, and Green Light Law Group.
Also on the reply brief was Brett Mulligan.
   Rachel A. Robinson argued the cause for respondents.
Also on the brief was Jason Daywitt and Lewis Brisbois
Bisgaard & Smith LLP.
  Before Ortega, Presiding Judge, and Powers, Judge, and
Hellman, Judge.
  HELLMAN, J.
  Affirmed.
430   Sunshine Farm, LLC v. Glaser
Cite as 

 (2024)                               431

            HELLMAN, J.
         Plaintiff, a limited liability company operating a
hemp farm, appeals a limited judgment dismissing its claim
under ORS 105.810 and ORS 105.815, commonly referred to
as the “timber trespass” statutes. In the sole assignment of
error, plaintiff claims that the trial court incorrectly required
plaintiff to plead that defendants willfully injured its crops
because the statutes allow recovery for “casual or voluntary”
timber trespass.1 Plaintiff also argues that, to the extent
the trial court relied on Meyer v. Harvey Aluminum, 

, 

 (1972), and Chase v. Henderson, 

, 

 (1973), to find that plaintiff could not sustain a cause of action under ORS 105.810 and ORS 105.815,
such a ruling was incorrect because those cases should be
limited to their facts. Because plaintiff’s claim is controlled
by Meyer and Chase, we affirm.
         When reviewing a ruling on an ORCP 21 A(1)(h)
motion to dismiss for failure to state a claim, “we assume
the truth of all allegations in plaintiff’s pleadings and view
all reasonable inferences in the light most favorable to plaintiff.” Munson v. Valley Energy Investment Fund, 

, 

 (2014) (internal quotation marks
omitted). We state the facts relating to plaintiff’s timber
trespass claim accordingly.
         Plaintiff operates a hemp farm that uses “organic
inputs and aquaponic fertilizer.” It also operates a hemp
extraction facility, which processes hemp into extract and
hemp products. Plaintiff’s property is surrounded by other
agricultural property. Defendants are its neighbors to the
east. In the summer of 2019, plaintiff had grown seven acres
of hemp, and had not used pesticide spray on that crop.
         In or around October 2019, defendants sprayed a
mixture of chemicals, including pesticide and herbicide, on
their own property. That spray drifted and fell on plaintiff’s
land and hemp crop. The spray contaminated both the hemp
crop and the soil. Thus, not only did it cause immediate damage to the existing hemp crop, but it also prevented plaintiff
from cultivating future hemp crops and affected plaintiff’s
   1
       Plaintiff withdrew its second assignment of error.
432                                   Sunshine Farm, LLC v. Glaser

ability to grow crops pesticide free. Defendants did not have
lawful authority to allow the chemical spray mixture to
cross onto plaintiff’s property and to injure plaintiff’s hemp
crop.
         Plaintiff brought an action alleging that defendants
caused damage to its crop and property when defendants
sprayed chemicals on their own land and those chemicals
drifted onto plaintiff’s land. Among the claims alleged by
plaintiff was a claim of casual timber trespass under ORS
105.810 and ORS 105.815.2
           ORS 105.810 provides that
    “whenever any person, without lawful authority, willfully
    injures or severs from the land of another any produce
    thereof or cuts down, girdles or otherwise injures or carries
    off any tree, timber or shrub on the land of another person,
    … in an action by such person … against the person
    committing such trespasses if judgment is given for the
    plaintiff, it shall be given for treble the amount of damages
    claimed, or assessed for the trespass. In any such action,
    upon plaintiff’s proof of ownership of the premises and the
    commission by the defendant of any of the acts mentioned
    in this section, it is prima facie evidence that the acts were
    committed by the defendant willfully, intentionally and
    without plaintiff’s consent.”
ORS 105.815 provides that “if, upon the trial of an action
included in ORS 105.810, it appears that the trespass was
casual or involuntary, … judgment shall be given for double damages.” A “casual or involuntary” timber trespass
claim is one that involves any “nonnegligent, nonvolitional
trespass.” Wyatt v. Sweitz, 

, 

, rev den, 

, rev dismissed, 

 (1997).
         Those statutes were originally enacted to provide
enhanced damages in cases where timber was “taken from
land by one who has no authority to do so.” Pedro v. January,

, 

 (1972). As the Supreme Court
explained, enhanced damages were necessary because “[i]f a
person could take timber unlawfully and then be compelled
to pay only the value of what [they] cut, the law would afford
    2
      Plaintiff also alleged claims based on ultrahazardous activity, four counts
of negligence per se, negligence, trespass, and private nuisance.
Cite as 

 (2024)                                433

no protection against any wrongdoer who schemes to force
a sale.” 

 ORS 105.810 was amended in 1925 to allow for
damages to “produce” and to expand the concept of “injury”
beyond simply the cutting of timber. Meyer, 

-97
(citing Or Laws 1925, ch 14, § 24). The last Supreme Court
cases directly on point, Meyer and Chase, were decided in
the early 1970s.
          In Meyer, the plaintiffs brought an action against
an aluminum plant, alleging that fluoride emissions from
the plant had damaged their apricot crop and trees. The
court identified the issue at hand as “whether [ORS 105.810
and ORS 105.815] apply to injuries to plaintiffs’ fruit crops
and trees caused by fumes emitted from defendants’ plant.”
Meyer, 

. After noting the long history of timber trespass statutes that focused only on cutting of trees,
the Supreme Court noted the 1925 amendments that added
the terms “produce” and “injury” to ORS 105.810, thereby
expanding the ways in which harm could be caused. 

. The Meyer court went on to describe the purpose of
ORS 105.810 as “to deter the cutting of another person’s timber.” 

 at 498 (citing Kinzua Lbr. Co. v. Daggett et al, 

, 

 (1955)). The court then wrote:
“The destruction of fruit and fruit trees by fumes might also
be deterred by the assessment of treble damages.” Meyer,

. The court also noted that a second purpose of
the statute was to deter wrongdoers who would, in effect, try
and force a sale of timber on an unwilling owner, explaining:
   “If a trespasser who cuts another’s timber is required only
   to pay as damages the value of the timber felled, the trespasser, in effect, would have forced the timber owner to
   sell his timber at market value. Such a practice obviously
   would be advantageous to a trespasser who needed timber
   and unfair to a timber owner who did not want to sell. ‘To
   offset this unfairness several states have rules calling for
   double, treble, and even quadruple damages in the event of
   trespass to timber.’ ”

 at 498 (quoting Harry Falk Jr., Timber and Forest
Products Law § 108 (1958)). In the very next sentence, without providing any analysis, the Meyer court summarily
concluded:
434                                   Sunshine Farm, LLC v. Glaser

      “Some of the distinctions that the multiple damages
   statutes make between the circumstances when treble
   damages may be assessed and when only double damages
   can be assessed cannot be made applicable to the instant
   case. ….
      “Based upon the litigation history of this treble damage statute and the total scheme of the multiple damage
   statutes, we conclude that they do not apply to the kind of
   damages assessed in the instant case.”

.
         In Chase, decided about a year-and-a-half after
Meyer, the Supreme Court applied the holding of Meyer
to an action seeking double, rather than triple, damages.
Chase, 

 (citing Meyer, 

). In so
doing, it held that ORS 105.815 did not apply to damages to
the plaintiffs’ pole bean crop that occurred when the defendant applied “chemical spray” to a pasture from a helicopter
and the spray drifted onto the plaintiffs’ crop. Chase, 

. Noting that Meyer was decided after the trial
court had doubled the damages, the Chase court summarily
concluded, “In [Meyer], the plaintiffs’ fruit crop and trees
were allegedly damaged by emissions from the defendant’s
aluminum plant. The same considerations which caused us
to conclude that treble damages were not allowable in such
a case cause us to conclude that double damages are not
allowable in this case.” 

         In the present case, defendants filed an ORCP 21
A(1)(h) motion asserting, as relevant here, that plaintiff
failed to state a claim for timber trespass because the statutes do not cover causes of action and damages resulting
from chemical drift.3 The trial court agreed with defendants
that the Supreme Court’s construction of ORS 105.810 and
ORS 105.815 in Meyer and Chase barred plaintiff’s claim
under those statutes. The trial court dismissed that claim
with prejudice in the limited judgment at issue here.
    3
      Defendants’ motion was filed in 2021 under ORCP 21 A(8) (2021).
Amendments to that rule took effect on 

. Those amendments
resulted in the subsections of the rule being renumbered. ORCP 21 A(1)(h) in
the current version of the rule corresponds to ORCP 21 A(8) in the 2021 version.
Because there are no substantive differences between them, we cite the current
version.
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 (2024)                             435

         On appeal, plaintiff urges us to confine Meyer and
Chase to their facts and to decide that those cases do not bar
plaintiff’s cause of action. Plaintiff points out that Meyer is
over 50 years old; that it does not engage in the Supreme
Court’s present form of statutory construction, nor much
analysis of the words of the statute at all; and that our own
recent cases concerning timber trespass claims have not
relied on Meyer. Defendant argues that Meyer and Chase are
controlling, and that those cases make clear that plaintiff
cannot maintain a cause of action for timber trespass based
on chemical drift.
         In our only case to directly confront the issue, we
highlighted the Meyer court’s lack of a clear statutory construction analysis, as well as the apparent internal inconsistencies in the opinion’s reasoning. Worman v. Columbia
County, 

, 

 (2008). But
despite the concerns we articulated in Worman, that case
does not aid plaintiff here. Worman involved a claim of direct
chemical spray, not indirect chemical drift. 

. We
noted in Worman that Meyer did not directly address direct
chemical spray and wrote that we understood “Meyer to permit the application of ORS 105.810 to the direct spraying of
herbicide on trees and shrubs—conduct that is a ‘deliberate trespass’ such as involved in cutting standing timber.”
Worman, 223 Or at 240 (quoting Meyer, 

).
         Since Meyer and Chase, we have never applied ORS
105.810 or ORS 105.815 to allegations of indirect chemical
drift. For example, in a case upon which plaintiff relies,
Simington Gardens, LLC v. Rock Ridge Farms, LLC, 

, 

 (2021), the trespass was also
direct: Cows escaped the defendant’s enclosure and trampled
and defecated on the plaintiffs’ organic salad plants, and the
defendant’s workers caused additional damage when they
retrieved the cows.
         Were we writing on a clean slate to interpret ORS
105.810 and ORS 105.815, perhaps plaintiff would have the
better argument. See State v. Gaines, 

,

 (2009) (setting out methodology for statutory interpretation). It is unclear to us how the text of ORS
105.815, on its face, allows for a distinction between chemical
436                                    Sunshine Farm, LLC v. Glaser

drift and other methods of casual timber trespass, all of
which could arguably involve “nonnegligent, nonvolitional
trespass.” Wyatt, 

. In other words, neither the text of ORS 105.810 nor ORS 105.815 put chemical
drift into a special category of timber trespass that can only
be accomplished willfully. However, we do not have a clean
slate. Meyer holds that triple damages are not available
under ORS 105.810 for injuries caused by indirect chemical
drift. 

. And, applying Meyer, Chase reached
the same result for double damages under ORS 105.815. 

. The mere fact that the opinions did not engage
in a present-day statutory analysis does not alter the fact
that they remain precedential. See Mastriano v. Board of
Parole, 

, 

 (2007) (holding that
the fact that a case predated PGE v. Bureau of Labor and
Industries, 

, 

 (1993), and therefore
did not follow that established method of statutory interpretation, “provides no basis, in and of itself, to disregard”
the Supreme Court’s interpretation of the law). We are thus
bound by Meyer and Chase, and their rulings require us to
affirm the trial court’s limited judgment.
          We also decline to interpret ORS 105.810 and ORS
105.815 as establishing a separate “timber trespass” cause
of action that plaintiff could maintain independent of the
doubling or tripling of damages. First, there is nothing in
the plain text of those statutes that establish a special cause
of action for harm to “produce” or “tree, timber, or shrub”
if the only remedy sought is actual damages.4 There are
already other legal avenues for those types of claims, as
evidenced by the other claims plaintiff alleged in this case.
Second, neither Meyer nor Chase characterized the statutes
as establishing an independent cause of action. Instead,
those cases described that the statutes allow the trial court
to triple or double the actual damages that the jury awarded
on an existing claim. For example, after concluding that
the plaintiffs did not establish that ORS 105.810 allowed
     4
       In Simington Gardens, LLC, 

, we characterized the claim
at issue as one of “trespass to produce or timber” and found support for that specific kind of trespass in ORS 105.810(1). However, we were not asked to decide
whether that claim could be maintained even if the damages provisions of the
statute did not apply. We therefore do not view Simington Gardens, LLC as controlling on this issue.
Cite as 

 (2024)                            437

the tripling of damages for chemical drift, Meyer remanded
the case to the trial court for a retrial on the amount of
actual damages that the plaintiffs incurred. 

.
Similarly, after concluding that double damages were likewise unavailable for chemical drift, Chase remanded to the
trial court for entry of judgment of actual damages on the
plaintiffs’ claim of “unintentional, non-negligent trespass”
via ultrahazardous activities based, not on the statute, but
on a common law cause of action. 

.
         In sum, plaintiff claims a timber trespass by defendants based on allegations that chemicals drifted from
defendants’ land, where they were applied to plaintiff’s crop
on plaintiff’s land. Plaintiff has not identified any allegations that defendants willfully or directly applied chemicals
to plaintiff’s crop or land. Thus, Meyer and Chase are controlling precedent in these circumstances. Because plaintiff
cannot recover triple or double damages, ORS 105.810 and
ORS 105.815 do not apply. The trial court thus did not err in
dismissing plaintiff’s timber trespass claim. To the extent
that Meyer and Chase may have incorrectly interpreted ORS
105.810 and ORS 105.815, that is a question for the Supreme
Court to answer.
        Affirmed.